Juror's letter about Crown's appearance not enough to warrant home invasion appeal: panel

The province's highest court has dismissed the appeal of two Sault Ste. Marie men convicted three years ago of offences stemming from a home invasion.

In a decision released Monday, the Ontario Court of Appeal rejected Zachary Torcaso and Dereck Maione's appeal of their conviction and sentence.

A jury found the pair guilty of break and enter in January 2017. 

Torcaso also was convicted of assault in connection with the March 2014 incident which occurred at a MacDonald Avenue residence.

During the trial, the complainant testified about two men, who he didn't know, breaking into his parents' home.

He identified Torcaso as the one who forced his way into the house damaging a dead-bolted front door, punching him in the face and knocking him through a closet door.

Maione also entered the home. He was brandishing a knife and confronted another man in the kitchen.

The appeals centred on two issues — a reasonable apprehension of bias and identity.

The first issue revolved around a letter, apparently from a juror, sent to Superior Court Justice Michael Varpio, during the trial.

The appellants argued that it compromised the fairness of the trial and raised a reasonable apprehension of bias.

The three-member panel disagreed, saying from its review of the evidence, the circumstances and juror's denial that she had written the letter, "we see no reason  to look beyond her denial."

It noted nothing in the letter "bears on the merits of the case."

The letter "complimented the Crown on his appearance and conduct during the case" and indicated that "she knew someone who would be a good match for him."

Even if the woman wrote the letter, it doesn't meet the high standard required to raise a reasonable apprehension of bias, the court said.

"Nothing in her letter suggested she would not respect her oath and decide the case on the evidence." 

The appeal court also disagreed that the sequence of events affected the appearance of fairness.

These circumstances included the judge's "inadvertent delay in discovering the letter, the manner in which the inquiry was conducted and the treatment of the juror's communication with the Crown office just after the post-verdict inquiry."

In its decision, the higher court disagreed that the cumulative effect of these steps compromised the fairness of the entire process.

"Nor do we find error with the inquiry process" since the judge reviewed each step of tne inquiry with the lawyers.

Torcaso also argued that the judge erred In his charge to the jury on the issue of identity and failed to adequately instruct jurors on the identification evidence.

Noting this was a one-issue trial, the appeal court said the judge had directed the jury to be cautious about the eye-witness testimony and the frailities of such identification.

"In the circumstances of this case, the jury was given the tools they needed to do their job," it concluded.

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